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Steak Offer Doesn't Cut It Under Newman,
1st Circ. Told
By Max Stendahl
Law360, New York (January 4, 2016, 1:17 PM ET) -- A criminal defense attorney told the First
Circuit on Monday that his insider trading conviction should be reversed under the Second
Circuit's Newman decision requiring tippers to receive personal benefits, saying he never
followed through on an offer to buy his source dinner at a steakhouse.
In a court filing, counsel for Lowell, Massachusetts-based lawyer Douglas Parigian said that
prosecutors had failed to meet the higher legal standard under the Second Circuit’s landmark
December 2014 ruling in Newman.
Parigian pled guilty in May 2015 to an insider trading scheme and was sentenced in August to
eight months of home confinement. On appeal, he has argued that his alleged source, a fellow
amateur golfer named Eric McPhail, did not receive a personal benefit as required in the
Prosecutors have claimed that McPhail once emailed Parigian with an illegal stock tip and
concluded by writing, “I like Pinot noir and love steak ... looking forward to getting paid back.
Good luck ... SHHHHHHHHHHHHH!!!!!!!!!!!!!!!!!” According to the government, Parigian
later replied, “I will take you for a nice dinner at Grill 23,” referring to a restaurant in Boston.
But on Monday, Allison Koury, an attorney for Parigian, said there was no allegation that the
men ever dined together.
“An allegation of an actual benefit to McPhail is absent,” Koury wrote in the court filing, which
came in reply to a Dec. 17 government brief seeking to uphold Parigian’s conviction.
Koury also argued that any benefits given to McPhail by other amateur golfers allegedly
involved in the scheme would not suffice to establish Parigian’s guilt.
“Taken to its extreme, that rule would mean that if a person tips one thousand people, a gift by
any one of those people would result in criminal liability for all,” Koury wrote.
Prosecutors have said that McPhail passed inside information about American Superconductor
Corp. to a group of golfing buddies, including Parigian and Holland & Knight LLP tax partner
Douglas Clapp. McPhail was convicted at trial and sentenced to 18 months in prison, but he has
also appealed to the First Circuit, arguing that the case was undermined by the Newman
The New York-based appeals court found that prosecutors must show that sources of inside
information received a personal benefit beyond mere friendship, and that traders were aware of
such benefits. The U.S. Supreme Court refused to review the case in October 2015.
Parigian and McPhail are among dozens of insider trading defendants nationwide to cite the
Newman ruling, which reversed the convictions of former hedge fund traders Todd Newman and
Anthony Chiasson and led to the dismissal of criminal charges against 12 other defendants in the
Southern District of New York. The government argued in its unsuccessful appeal to the
Supreme Court that the decision effectively legalized certain kinds of trading that could
undermine the integrity of the stock market.
The First Circuit has yet to weigh in on the personal benefit issue.
The government is represented by Andrew Lelling.
Parigian is represented by Allison Koury.
The case is USA v. Parigian, case number 15-1994, in the U.S. Court of Appeals for the First
--Editing by John Quinn.
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